Jack Richard Lebowitz
Jack Richard Lebowitz, Real Estate Attorney - Glens Falls, NY
Posted over 2 years ago.

Is there NY case law on that proposition; I'm curious if that's the case? I always thought under the common law, drainage (unlike changing watercourses) was the "common enemy" and a landowner was not liable for improvements to his land that changed drainage patterns (other than the modern typical stormwater management or SWPPP permits and rules that apply to a lot of development under the Clean Water Act or the wetlands laws where jurisdictional activities under those laws occur).

Jack Richard Lebowitz
Jack Richard Lebowitz, Real Estate Attorney - Glens Falls, NY
Posted over 2 years ago.

See my further comment below to Mr. Bollhofer on the common law and case law contra this proposition (Kossoff v. Rathgeb-Walsh, 3 NY 2d 583 (1958)).

Richard J. Brickwedde
Richard J. Brickwedde, Real Estate Attorney - Syracuse, NY
Posted over 2 years ago.

As the Kossoff case states, "either proprietor can improve his land according to his own desire in any manner to which the land is suited, without being liable to the abutting owner for change in the flowage of the surface water provided that he does not resort to drains, pipes or ditches."

either proprietor can improve his land according to his own desire in any manner to which the land is suited, without being liable to the abutting owner for change in the flowage of the surface water provided that he does not resort to drains, pipes or ditches."

That is the key language that would have to be addressed to have a cause of action.

Jack Richard Lebowitz
Jack Richard Lebowitz, Real Estate Attorney - Glens Falls, NY
Posted over 2 years ago.

Yes, but the asker seemed to imply it was only filling his land that was the problem. Still, aside from the legal niceties, he would have to brought in an unimaginable quantity of fill to be affecting properties half a mile away. :-)